The U.S. Supreme Court agreed last week to decide whether a state high school athletic association that has been delegated authority to regulate interscholastic sports is an arm of the state for purposes of the protections of the U.S. Constitution.
The case has important implications nationwide because high school athletics in most states are governed by nominally private associations that have broad authority over eligibility and other issues.
Brentwood Academy, a Tennessee private school that was penalized in 1997 by the Tennessee Secondary Schools Athletic Association for alleged recruiting violations, filed the appeal the high court agreed to hear.
In the view of the academy, the association’s rule against recruiting, which bars “undue influence” on prospective students to “secure or retain a student for athletic purposes,” violates the school’s First Amendment right of free speech by limiting its ability to communicate with prospective students about educational opportunities.
Spring Football
A panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, ruled last year that the TSSAA was not a “state actor” under the Constitution and thus its rule against recruiting was not an infringement of the school’s First Amendment rights.
The appellate panel described Brentwood Academy, a 580-student school near Nashville, as “a high school football powerhouse.” Under longtime football coach Carlton Flatt, the school’s team had a win-loss record of 320-46, with nine state championships since its founding in 1969.
In 1997, some public high school football coaches in Tennessee alleged that the private school was violating the TSSAA’S recruiting regulations. The association’s board ultimately found three violations by the school: that the academy provided free game tickets to a public middle school coach, who made them available to two student athletes; that Brentwood coaches conducted impermissible off-season athletic practices; and that Mr. Flatt had impermissible contacts with middle school students about participating in spring football practice.
The association placed the school’s entire athletic program on probation for four years, fined the school $3,000, and suspended the football and basketball teams from playoff participation during the 1997-98 and 1998-99 school years.
The academy disputed the charges.
“Here in Tennessee, football is a big sport, and we have dominated football,” Mr. Flatt said in an interview last week. “Any time you see a successful program like ours, you are going to see those allegations [of rules violations], whether there is anything to substantiate them or not. And there is not anything to substantiate them.”
Mr. Flatt retired as football coach last spring after 29 years but remains the athletic director of Brentwood Academy, which enrolls students in grades 6 to 12. He is pressing a separate state lawsuit against the TSSAA and its executive director, Ronnie Carter, seeking $2 million in damages for alleged loss of reputation and emotional and physical distress caused by the allegations of rules violations.
In papers filed in the Supreme Court, the TSSAA says the school’s communications with incoming students were for “athletic reasons” and were not about “opportunities for educational enrichment,” as the school suggests.
The association, which was founded in 1925 and is composed of 290 public schools and 55 private schools, says in its brief that the goal of its rule against recruiting is “to prevent a sports-obsessed school from treating school-aged children as athletes first and students second. Brentwood Academy ran afoul of that rule, a rule it expressly agreed to follow.”
Stifling Competition?
The Supreme Court has granted review in Brentwood Academy v. Tennessee Secondary Schools Athletic Association (Case No. 99-901) not to examine the wisdom of the association’s recruiting rules but to consider the constitutional status of state athletic associations.
A federal district judge in Nashville sided with Brentwood Academy that the TSSAA was a “state actor” and thus its rules were subject to analysis under the Constitution. The court went on to hold that the association’s recruiting rule violated the First Amendment, saying that prohibiting schools from communicating with prospective students could not be justified.
“It is simply not the business of the state to stifle competition among schools for students, whether those students are athletes, musical prodigies, or math geniuses,” the district judge said.
The 6th Circuit panel unanimously reversed the district court, ruling that the TSSAA was not an arm of the state. It noted that although the state board of education had for many years designated the association to conduct interscholastic sports, the TSSAA received no funding from the state.
Brentwood Academy unsuccessfully sought a rehearing before the full 6th Circuit court. U.S. Circuit Judge Gilbert S. Merritt, who was among the minority of the full appeals court who wanted to rehear the case, said the panel’s decision was at odds with at least six other federal appeals courts that have ruled state athletic associations are state actors.
In a 1968 case, for example, a federal appeals court ruled that the Louisiana High School Athletic Association was acting as an arm of the state when it maintained a racially segregated system of high school athletics. The segregated system was struck down.
In a 1982 case, another federal appeals court ruled that the Arizona Interscholastic Association was a state actor under the Constitution for purposes of a lawsuit that challenged the association’s gender regulations.
The court announced Feb. 22 it would hear Brentwood Academy’s appeal. It will hold oral arguments in the case in its next term, which begins in October.
